American Law Institute Cle Eminent Domain and Land Valuation Litigation Keynote Address: “Property Rights: Foundation for a Free Society”
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AMERICAN LAW INSTITUTE CLE EMINENT DOMAIN AND LAND VALUATION LITIGATION KEYNOTE ADDRESS: “PROPERTY RIGHTS: FOUNDATION FOR A FREE SOCIETY” PALM SPRINGS, CALIFORNIA JANUARY 24, 2019 KEYNOTE ADDRESS SPEAKER W. Taylor Reveley, III, President Emeritus of William & Mary, and John Stewart Bryan Professor of Jurisprudence Emeritus at William & Mary Law School* Friends, let’s think back to September 1787. Our country’s Consti- tutional Convention was nearing its end in Philadelphia when a formidable woman encountered Benjamin Franklin, a delegate to the Convention.1 She braced him with this question: “Well[,] Doctor[,] what have we got[,] a republic or a monarchy[?]”2 The wise, old, battle- tested Franklin replied simply: “A republic . if you can keep it.”3 So, friends, we have a republic if we can keep it. We have a free so- ciety if we can keep it. Just what role do property rights—the freedom to acquire and govern our assets—play in nurturing our republic and our society? It is the rare American these days who doesn’t feel that our coun- try’s civic life and democratic institutions have gotten pretty ragged, and our political and social fabric dangerously frayed. This feeling runs across the political and cultural spectrum from citizens who find Donald Trump and Fox News the “be all and end all” to those who sit at the feet of Nancy Pelosi or Bernie Sanders, aided and abetted by CNN and MSNBC. Perhaps the citizens most concerned about the sad state of our political and social fabric are those who fall be- tween these two poles, hoping everyone will take a deep breath, cool the invective, and get on with the work at hand. * Warm thanks to Mason Shefa, William & Mary Law School ’19, for his excellent work on citations to these remarks. 1. See Papers of Dr. James McHenry on the Federal Convention of 1787, 11 AM. HIST. REV. 595, 618 (1906), reprinted in U.S. GOV’T PRINTING OFF., DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 952 (1927). 2. Id. 3. Id. 241 242 PROPERTY RIGHTS JOURNAL [Vol. 8:241 Now, by no stretch of the imagination is this the first time Ameri- cans have been alienated from one another. The Revolutionary War was as much a struggle that pitted colonists against colonists, rebels against loyalists, as it was a conflict with Great Britain. During the presidential election of 1800, the supporters of John Adams and Thomas Jefferson were frenzied, fearing that if the election went against them, the fledgling nation would be strangled in its crib. To press their respective cases, Jefferson’s partisans called Adams a “hid- eous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.”4 Adams’ adherents, in turn, termed Jefferson “mean-spirited, . an atheist, a libertine, and a coward.”5 The Civil War, when it came early in the republic’s life, again pitted Americans against Americans in a struggle of catastrophic dimen- sions. The Great Depression of the 1930s, Vietnam, Watergate, and the civil rights movement all led to serious internal disputes and strife. Americans have disagreed over immigration repeatedly since the colonists first set foot in America. Issues rooted in race, religion, gender, sexual orientation, and economics have all taken their toll on our national harmony and unity. In short, internal strife is nothing new for our country. But that fact makes all the clearer our need for countervailing forces that bring us together and help sustain our republic, time and again. A Holo- caust survivor and resistance fighter whom I know likens America to a cat with many lives—in the end, the United States always lands on its feet. So let’s think together about how property rights are vital in en- abling our country to keep landing on its feet. Turn the matter of how property rights do this deed over in your own minds as I offer my own ruminations about the matter. At the threshold, it is always telling for me to remember that one of the first things a totalitarian regime usually does is interfere with property rights.6 It seizes the property of people actively opposed to 4. ED WRIGHT, HISTORY’S GREATEST SCANDALS 11 (2006). 5. Kerwin Swint, Founding Fathers’ Dirty Campaign, CNN (Aug. 22, 2008), http://www.cnn .com/2008/LIVING/wayoflife/08/22/mf.campaign.slurs.slogans (last visited March 20, 2019). 6. See, e.g., Vladimir Lenin, Dekret o Zemle [Decree on Land], IZVESTIIA TSENTRAL’NOGO ISPOLNITEL’NOGO KOMITETA SOVETOV RABOCHIKH I KRESTIANSKIKH DEPUTATOV SSSR [IZV.TSIK] [Bulletin of the USSR Central Executive Committee of the Councils of Workers’ and Peasants’ Deputies] 1917, http://www.hist.msu.ru/ER/Etext/DEKRET/o_zemle.htm. For a full translation, 2019] PROPERTY RIGHTS: FOUNDATION FOR A FREE SOCIETY 243 the regime and the property of groups whom the regime singles out for special persecution (such as Jews under Hitler and Kulaks under Stalin), and it relentlessly grows the role of the state in the general acquisition and disposition of property.7 Indeed, if the regime is com- munist, it quickly eliminates all significant sources of private prop- erty,8 demonizes those who once owned it, and murders millions of them.9 Lenin, Stalin, and Mao intuitively understood that property rights are antithetical to tyrannical government. To quote a leading lawyer in the first half of the twentieth century, John W. Davis, “History furnishes no instance where the right of man to acquire and hold property has been taken away . without the complete destruction of liberty in all its forms.”10 Past experience does make clear that there is a strong link between the right to pos- sess property and the existence of personal freedom. It is always invigorating to recall the words of Justices of the United States Supreme Court when what they say strikes kindred chords with us (less invigorating to quote them, of course, when their words rattle our cages). In 1897, Justice Harlan said, “Due protection of the rights of property has been regarded as a vital principle of republican institutions.”11 In 1921, Justice McKenna wrote, “The secu- rity of property next to personal security against the exertions of gov- ernment is the essence of liberty.”12 In 1972, Justice Stewart declared that the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. In fact, a fundamental interdependence exists between see Report on Land, MARXISTS INTERNET ARCHIVE, https://www.marxists.org/archive/lenin /works/1917/oct/25-26/26d.htm (last visited Apr. 10, 2019). See generally Adam J. Macleod, Strategic and Tactical Totalization in the Totalitarian Epoch, 5 BRIT. J. AM. LEGAL STUD. 57 (2016) (discussing the legal theories behind interference with property rights by totalitarian regimes abroad). 7. See, e.g., Calvin B. Hoover, Dictatorship and Property, 13 VIRGINIA Q. REV. 161 (1937). 8. Id. at 163–64. 9. See Stephen W. Carson, A Property-Rights Theory of Mass Murder, FOUND. ECON. EDUC. (Sept. 1, 2008), https://fee.org/articles/a-property-rights-theory-of-mass-murder (last visited March 22, 2019). 10. JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HIS- TORY OF PROPERTY RIGHTS 133 (3d ed. 2008) (quoting WILLIAM H. HARBAUGH, LAWYER’S LAWYER: THE LIFE OF JOHN W. DAVIS 347 (1973)). 11. ELY, supra note 10, at 3 (quoting Justice Harlan in Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226, 235–36 (1897)). 12. Block v. Hirsh, 256 U.S. 135, 165 (1921) (McKenna, J., dissenting). 244 PROPERTY RIGHTS JOURNAL [Vol. 8:241 the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized.13 A few years earlier, in 1958, a judge of the U.S. Court of Appeals for the Second Circuit, the august Learned Hand, sounded the same theme. Let me quote what James W. Ely, Jr., wrote about the great Judge Hand. Ely said that Judge Hand questioned whether there was a principled distinction between personal and property rights. He observed that “it would have seemed a strange anomaly” to the framers of the Fifth Amend- ment “to learn that they constituted severer restrictions as to Liberty than Property.” Hand added that there was “no constitu- tional basis” for asserting greater judicial supervision over personal freedom than over economic liberty.14 Now let’s see what the Constitution has to say about the matter. This entails a look at the historical context out of which the property provisions of the Constitution arose and then a look at the intentions of its framers and ratifiers, to the extent those intentions can be di- vined from very fragmentary records. Next comes the text of the Constitution itself and what it actually says about property. Finally, there is actual practice—how these provisions of the Constitution have been interpreted in real life, no matter what the historical context out of which the Constitution arose, no matter what the intentions of the constitutional fathers, and no matter what the pertinent words of the Constitution say. Days could be spent on these four intertwined inquiries. Let your hearts be at rest, I will be mercifully brief. First, the historical context. A desire to escape the aristocratic, quasi-feudal ways of property ownership in England and Scotland was one of the motivating forces that led colonists to crowd aboard small, unsafe vessels; take their chances crossing a vast sea; and land, if successful, on a mysterious continent, then largely wilder- ness.15 In the mid-1600s in England and Scotland, to quote a distin- guished property scholar, “land use was far from free, because it was 13.